Produced by Al Haines

Note: This is an updated edition of PG#13376.

OUR LEGAL HERITAGE

King AEthelbert - King George III, 1776

600 A.D. - 1776

S. A. Reilly, Attorney

175 E. Delaware Place

Chicago, Illinois 60611-7715

S-Reilly@att.net

Preface

This book was written to appreciate what laws have been in existence for a long time and therefore have proven their success in maintaining a stable society. Its purpose is also to see the historical context in which our legal doctrines developed. It includes the inception of the common law system, which was praised because it made law which was not handed down by an absolutist king; the origin of the jury system; the meaning of the Magna Carta provisions in their historical context; and the emergence of attorneys.

This book is a primer. One may read it without prior knowledge of history or law, although it will be more meaningful to attorneys than to others. It can serve as an introduction on which to base further reading in English legal history. It defines terms unique to English legal history. However, the meaning of some terms in King Aethelbert's code in Chapter 1 are unknown or inexact.

In the Table of Contents, the title of each chapter denotes an
important legal development in the given time period for that chapter.
Each chapter is divided into three sections: The Times, The Law, and
Judicial Procedure.

The Times section sets a background and context in which to better understand the law of that period. The usual subject matter of history such as battles, wars, royal intrigues, periods of corruption, and international relations are omitted as not helping to understand the process of civilization and development of the law. Standard practices are described, but there are often variations with locality. Also, change did not come abruptly, but with vacillations, e.g. the change from pagan to Christian belief and the change to allowance of loans for interest. The scientific revolution was accepted only slowly. There were often many attempts made for change before it actually occurred, e.g. gaining Parliamentary power over the king's privileges, such as taxation.

The Law section describes the law governing the behavior and conduct of the populace. It includes law of that time which is the same, similar, or a building block to the law of today. In earlier times this is both statutory law and the common law of the courts. The Magna Carta, which is quoted in Chapter 7, is the first statute of England and is listed first in the "Statutes of the Realm" and the "Statutes at Large". The law sections of Chapters 7 - 18 mainly quote or paraphrase almost all of these statutes. Excluded are statutes which do not help us understand the development of our law, such as statutes governing Wales after its conquest and statutes on succession rights to the throne.

The Judicial Procedure section describes the process of applying the law and trying cases, and jurisdictions. It also contains some examples of cases.

For easy comparison, amounts of money expressed in pounds or marks [Danish denomination] have often been converted to the smaller denominations of shillings and pence. There are twenty shillings in a pound. A mark in silver is two-thirds of a pound. Shillings are abbreviated: "s." There are twelve pennies or pence in a Norman shilling. Pence are abbreviated "d." Six shillings and two pence is denoted 6s.2d. A scaett was a coin of silver and copper of lesser denomination than a shilling. There were no coins of the denomination of shilling during Anglo-Saxon times.

The sources and reference books from which information was obtained are listed in a bibliography instead of being contained in tedious footnotes. There is no index to pages because the electronic text will print out its pages differently on different computers with different computer settings. Instead, a word search may be done on the electronic text.

Dedication and Acknowledgements

A Vassar College faculty member once dedicated her book to her students, but for whom it would have been written much earlier. This book "Our Legal Heritage" is dedicated to the faculty of Vassar College, without whom it would never have been written. Much appreciation goes to Professor James Curtin of Loyola Law School for his review and comments on this book's medieval period: Chapters 4-10, and especially his comment that "I learned quite a bit about life in those days from your work." Thanks go to Loyola University Law School Professor George Anastaplo for introducing me to Professor Curtin. Much appreciation goes to Professor Lacey Baldwin Smith of Northwestern University's History Department for his review and comments on this book's Tudor and Stuart periods: Chapters 11-17, especially his comment that he learned a lot. Thanks go to Northwestern University Law School Professor Steven Presser for introducing me to Professor Smith. Finally, many thanks go to fellow Mensan William Wedgeworth for proof-reading the entire book.

Chapters:

1. Tort law as the first written law: to 600

2. Oaths and perjury: 600-900

3. Marriage law: 900-1066

4. Martial "law": 1066-1100

5. Criminal law and prosecution: 1100-1154

6. Common Law for all freemen: 1154-1215

7. Magna Carta: the first statute: 1215-1272

8. Land law: 1272-1348

9. Legislating the economy: 1348-1399

10. Equity from Chancery Court: 1399-1485

11. Use-trust of land: 1485-1509

12. Wills and testaments of lands and goods: 1509-1558

13. Consideration and contract Law: 1558-1601

14. Welfare for the poor: 1601-1625

15. Independence of the courts: 1625-1642

16. Freedom of religion: 1642-1660

17. Habeas Corpus: 1660-1702

18. Service of Process instead of arrest: 1702-1776

19. Epilogue: 1776-2000

Appendix: Sovereigns of England

Bibliography

- - - Chapter 1 - - -

- The Times: before 600 A.D. -

The settlement of England goes back thousands of years. At first, people hunted and gathered their food. They wore animal skins over their bodies for warmth and around their feet for protection when walking. These skins were sewn together with bone needles and threads made from animal sinews. They carried small items by hooking them onto their belts. They used bone and stone tools, e.g. for preparing skins. Their uncombed hair was held by thistlethorns, animal spines, or straight bone hair pins. They wore conical hats of bound rush and lived in rush shelters.

Early clans, headed by kings, lived in huts on top of hills or other high places and fortified by circular or contour earth ditches and banks behind which they could gather for protection. They were probably dug with antler picks and wood spades. The people lived in rectangular huts with four wood posts supporting a roof. The walls were made of saplings, and a mixture of mud and straw. Cooking was in a clay oven inside or over an open fire on the outside. Water was carried in animal skins or leather pouches from springs lower on the hill up to the settlement. Forests abounded with wolves, bears, deer, wild boars, and wild cattle. They could more easily be seen from the hill tops. Pathways extended through this camp of huts and for many miles beyond.

For wives, men married women of their clan or bought or captured other women, perhaps with the help of a best man. They carried their unwilling wives over the thresholds of their huts, which were sometimes in places kept secret from her family. The first month of marriage was called the honeymoon because the couple was given mead, a drink with fermented honey and herbs, for the first month of their marriage. A wife wore a gold wedding band on the ring finger of her left hand to show that she was married.

Women usually stayed at home caring for children, preparing meals, and making baskets. They also made wool felt and spun and wove wool into a coarse cloth. Flax was grown and woven into a coarse linen cloth. Spinning the strands into one continuous thread was done on a stick, which the woman could carry about and spin at anytime when her hands were free. The weaving was done on an upright or warp-weighted loom. People of means draped the cloth around their bodies and fastened it with a metal brooch inlayed with gold, gems, and shell, which were glued on with glue that was obtained from melting animal hooves. People drank from hollowed- out animal horns, which they could carry from belts. They could tie things with rawhide strips or rope braids they made. Kings drank from animal horns decorated with gold or from cups of amber, shale, or pure gold. Men and women wore pendants and necklaces of colorful stones, shells, amber beads, bones, and deer teeth. They skinned and cut animals with hand-axes and knives made of flint dug up from pits and formed by hitting flakes off. The speared fish with barbed bone prongs or wrapped bait around a flint, bone, or shell fish hook. On the coast, they made bone harpoons for deep-sea fish. The flint ax was used to shape wood and bone and was just strong enough to fell a tree, although the process was very slow.

The king, who was tall and strong, led his men in hunting groups to kill deer and other wild animals in the forests and to fish in the streams. Some men brought their hunting dogs on leashes to follow scent trails to the animal. The men threw stones and spears with flint points at the animals. They used wood clubs to beat them, at the same time using wood shields to protect their bodies. They watched the phases of the moon and learned to predict when it would be full and give the most light for night hunting. This began the concept of a month. Circles of stone like Stonehenge were built with alignments to paths of the moon.

If hunting groups from two clans tried to follow the same deer, there might be a fight between the clans or a blood feud. After the battle, the clan would bring back its dead and wounded. A priest officiated over a funeral for a dead man. His wife would often also go on the funeral pyre with him.

The priest also officiated over sacrifices of humans, who were usually offenders found guilty of transgressions. Sacrifices were usually made in time of war or pestilence, and usually before the winter made food scarce.

The clan ate deer that had been cooked on a spit over a fire, and fruits and vegetables which had been gathered by the women. They drank water from springs. In the spring, food was plentiful. There were eggs of different colors in nests and many hare to eat. The goddess Easter was celebrated at this time.

Later, there was farming and domestication of animals such as horses, pigs, sheep, goats, chicken, and cattle. Of these, the pig was the most important meat supply, being killed and salted for winter use. Next in importance were the cattle. Sheep were kept primarily for their wool. Flocks and herds were taken to pastures. The male cattle, with wood yokes, pulled ploughs in the fields of barley and wheat. The female goat and cow provided milk, butter, and cheese. The chickens provided eggs. The hoe, spade, and grinding stone were used. Thread was spun with a hand-held spindle which one hand held while the other hand alternately formed the thread from a mass and then wound it around the spindle. A coarse cloth was woven and worn as a tunic which had been cut from the cloth. Kings wore tunics decorated with sheet gold. Decorated pottery was made from clay and used to hold liquids and for food preparation and consumption. During the period of "lent" [from the word "lencten", which means spring], it was forbidden to eat any meat or fish. This was the season in which many animals were born and grew to maturity. Wood carts with four wheels were used to transport produce and manure. Horses were used for transportation of people or goods. Wood dug-out boats and paddles were used to fish on rivers or on the seacoast.

Clans had settlements near rivers. Each settlement had a meadow, for the mowing of hay, and a simple mill, with round timber huts, covered with branches or thatch or turf supported by a ring of posts. Inside was a hearth with smoke going up through a hole in the roof, and a cauldron for cooking food. There was an upright loom in the darkness. The floor was swept clean. At the door were spears or bags of slingstones ready for immediate use. The King lived in the largest hut. Gullies outside carried off excess water. Each hut had a garden for fruit and vegetables. A goat or cow might be tied out of reach of the garden. There was a fence or hedge surrounding and protecting the garden area and dwelling. Buckets and cauldrons which had originated from the Mediterranean were used. Querns with the top circular stone turned by hand over the bottom stone were used for grinding grain. There were ovens to dry and roast grain. Grain was first eaten as a porridge or cereal. There were square wood granaries on stilts and wood racks on which to dry hay. Grain was stored in concealed pits in the earth which were lined with drystone or basket work or clay and made airtight by sealing with clay or dung. Old pits were converted into waste dumps, burials, or latrines. Outside the fence were an acre or two of fields of wheat and barley, and sometimes oats and rye. Wheat and rye were sown in the fall, and oats and barley in the spring. Sowing was by men or two oxen drawing a simple scratch plough. The crops were all harvested in the summer. In this two-field system, land was held by peasants in units designed to support a single extended family. These fields were usually enclosed with a hedge to keep animals from eating the crop and to define the territory of the settlement from that of its neighbors. Flax was grown and made into linen cloth. Beyond the fields were pastures for cattle and sheep grazing. There was often an area for beehives. This was subsistence level farming.

Pottery was given symmetry when formed with use of a wheel and heated in increasingly hot kilns. From kilns used for pottery, it was noticed that lumps of gold or copper ore within would melt and assume the shape of what they had been resting on. These were the first metals, and could be beaten into various shapes, such as ornaments. Then the liquid ore was poured into moulds carved out of stones to make axes [small pointed tool for piercing holes in leather, wood, or other soft materials] and daggers, which were reheated and hammered to become strong. Copper-tipped drills, chisels, punches and awls were also made.

The bodies of deceased were buried far away from any village in wood coffins, except for kings, who were placed in large stone coffins after being wrapped in linen. Buried with them were a few personal items, such as copper daggers, flat copper axes, and awls. The deceased was buried in a coffin with a stone on top deep in the earth to keep the spirit of the dead from coming out to haunt the living.

It was learned that tin added to the copper made a stronger metal: bronze. Stone hammers, and bronze and iron tools, were used to make cooking pots, weapons, breast plates, and horse bits, which were formed from moulds and/or forged by bronze smiths and blacksmiths from iron extracted from iron ore heated in bowl- shaped hearths. Typically one man operated the bellows to keep the fire hot while another did the hammering. Bronze was made into sickles for harvesting, razors for shaving, tweezers, straight hair pins, safety pins for clothes, armlets, neck-rings, and mirrors. Weapons included bows and arrows, flint and copper daggers, bronze swords and spears, stone axes, and shields of wood with bronze mountings. The bows and arrows probably evolved from spear throwing rods. Kings in body armor fought with chariots drawn by two horses. The horse harnesses had bronze fittings. The chariots had wood wheels, later with iron rims. When bronze came into use, there was a demand for its constituent parts: copper and tin, which were traded by rafts on waterways and the sea. When iron came into use, there were wrought iron axes, saws, adzes [ax with curved blade used to dress wood], files, ploughshares, harrows [set of spikes to break clods of earth on ploughed land and also to cover seed when sewn], scythes, billhooks [thick knife with hooked point used to prune shrubs], and spits for hearths. Lead was mined. There was some glassmaking of beads. Wrought iron bars were used as currency.

Hillforts now had wooden palisades on top of their banks to protect the enclosed farmsteads and villages from stock wandering off or being taken by rustlers, and from attacks by wild animals or other people. Later a rampart was added from which sentries could patrol. These were supported by timber and/or stone structures. Timbers were probably transported by carts or dragged by oxen. At the entrances were several openings only one of which really allowed entry. The others went between banks into dead ends and served as traps in which to kill the enemy from above. Gates were of wood, some hung from hinges on posts which could be locked. Later guard chambers were added, some with space for hearths and beds. Sometimes further concentric circles of banks and ditches, and perhaps a second rampart, were added around these forts. They could reach to 14 acres. The ramparts are sufficiently widely spaced to make sling-shotting out from them highly effective, but to minimize the dangers from sling-shotting from without. The additional banks and ditches could be used to create cattle corridors or to protect against spear-thrown firebrands. However, few forts had springs of water within them, indicating that attacks on them were probably expected to be short. Attacks usually began with warriors bristling with weapons and blowing war trumpets shouting insults to the foe, while their kings dashed about in chariots. Sometimes champions from each side fought in single combat. They took the heads of those they killed to hang from their belts or place on wood spikes at the gates. Prisoners, including women and children, might become slaves. Kings sometimes lived in separate palisades where they kept their horses and chariots.

Circles of big stones like Stonehenge were rebuilt so that the sun's position with respect to the stones would indicate the day of longest sunlight and the day of shortest sunlight. Between these days there was an optimum time to harvest the crops before fall, when plants dried up and leaves fell from the trees. The winter solstice, when the days began to get longer was cause for celebration. In the next season, there was an optimum time to plant seeds so they could spring up from the ground as new growth. So farming gave rise to the concept of a year. Certain changes of the year were celebrated, such as Easter, named for the Goddess of the Dawn, which occurred in the east (after lent); May Day celebrating the revival of life; Lammas around July, when the wheat crop was ready for harvesting; and on October 31 the Celtic eve of Samhain, when the spirits of the dead came back to visit homes and demand food or else cast an evil spell on the refusing homes; and at which masked and costumed inhabitants representing the souls of the dead paraded to the outskirts of the settlements to lead the ghosts away from their homes; and at which animals and humans, who might be deemed to be possessed by spirits, were sacrificed or killed perhaps as examples, in huge bonfires [bonefires] as those assembled looked out for spirits and evil beings.

There was an agricultural revolution from the two-field system in which one field was fallow to the three-field system, in which there were three large fields for the heavy and fertile land. Each field was divided into long and narrow strips. Each strip represented a day's work with the plough. One field had wheat, or perhaps rye, another had barley, oats, beans, or peas, and the third was fallow. It had been observed that legumes such as peas and beans restored the soil. These were rotated yearly. There was a newly invented plough that was heavy and made of wood and later had an attached iron blade. The plough had a mould-board which caught the soil stirred by the plough blade and threw it into a ridge alongside the furrow dug by the plough blade. This plough was too heavy for two oxen and was pulled by a team of about eight to ten oxen. Each ox was owned by a different man as was the plough, because no one peasant could afford the complete set. Each freeman was allotted certain strips in each field to bear crops. His strips were far from each other, which insured some very fertile and some only fair soil, and some land near his village dwelling and some far away. These strips he cultivated, sowed with seed, and harvested for himself and his family. After the harvest, they reverted to common ownership for grazing by pigs, sheep, and geese. As soon as haymaking was over, the meadows became common grazing land for horses, cows, and oxen. Not just any inhabitant, but usually only those who owned a piece of land in the parish were entitled to graze their animals on the common land, and each owner had this right of pasture for a definite number of animals. The faster horse replaced the ox as the primary work animal. Other farm implements were: coulters, which gave free passage to the plough by cutting weeds and turf, picks, spades and shovels, reaping hooks and scythes, and sledge hammers and anvils. Strips of land for agriculture were added from waste land as the community grew. Waste lands were moors bristling with brushwood, or gorse, heather and wanton weeds, reed-coated marshes, quaking peat-bogs, or woods grown haphazard on sand or rock. With iron axes, forests could be cleared to provide more arable land.

Some villages had a smith, a wheelwright, and a cooper. There were villages which had one or two market days in each week. Cattle, sheep, pigs, poultry, calves, and hare were sold there. London was a town on the Thames River under the protection of the Celtic river god Lud: Lud's town. It's huts were probably built over the water, as was Celtic custom. It was a port for foreign trade. Near the town was Ludhill. Each Celtic tribe in England made its own coinage. Silver and bronze were first used, and then gold. The metal was put into a round form and then placed between two engraved dies, which were hit.

Flint workers mined with deer antler picks and ox shoulder blade shovels for flint to grind into axes, spearheads, and arrowheads. Mine shafts were up to thirty feet deep and necessitated the use of chalk lamps fueled by animal fat with wicks of moss. The flint was hauled up in baskets.

Common men and women were now buried in tombs within memorial burial mounds of earth with stone entrances and interior chambers. A man's weapons and shield were buried with him and a woman's spindle and weaving baton, and perhaps beads or pottery with her. At times, mounds of earth would simply be covered over piles of corpses and ashes in urns. In these mass graves, some corpses had spear holes or sword cuts, indicating death by violence. The Druid priests, the learned class of the Celts, taught the Celts to believe in reincarnation of the soul after death of one body into another body. They also threw prized possessions into lakes and rivers as sacrifices to water gods. They placed images of gods and goddesses in shrines, which were sometimes large enough to be temples. They thought of their gods as supernatural magicians.

With the ability to grow food and the acquisition of land by conquest by invading groups, the population grew. There were different classes of men. The freemen were eorls [noble freemen] or ceorls [ordinary free farmers]. Slaves were not free. Freemen had long hair and beards. Slaves' hair was shorn from their heads so that they were bald. Slaves were chained and often traded. Prisoners taken in battle, especially native Britons taken by invading groups, became slaves. A slave who was captured or purchased was a "theow". An "esne" was a slave who worked for hire. A "weallas" was a Welsh slave. Criminals became slaves of the person wronged or of the king. Sometimes a father pressed by need sold his children or his wife into bondage. Debtors, who increased in number during famine, which occurred regularly, became slaves by giving up the freeman's sword and spear, picking up a slave's mattock [pick ax for the soils], and placing their head within a lord's or lady's hands. They were called wite- theows. The original meaning of the word lord was "loaf-giver". Children with a slave parent were slaves. The slaves lived in huts around the homes of big landholders, which were made of logs and consisted on one large room or hall. An open hearth was in the middle of the earthen floor of the hall, which was strewn with rushes. There was a hole in the roof to let out the smoke. Here the landholder and his men would eat meat, bread, salt, hot spiced ale, and mead while listening to minstrels sing about the heroic deeds of their ancestors. Richer men drank wine. There were festivals which lasted several days, in which warriors feasted, drank, gambled, boasted, and slept where they fell. Physical strength and endurance in adversity were admired traits.

Slaves often were used as grain grinders, ploughmen, sowers, haywards, woodwards, shepherds, goatherds, swineherds, oxherds, cowherds, dairymaids, and barnmen. Slaves had no legal rights. A lord could kill his slave at will. A wrong done to a slave was regarded as done to his owner. If a person killed another man's slave, he had to compensate him with the slave's purchase price. The slave owner had to answer for the offenses of his slaves against others, as for the mischief done by his cattle. Since a slave had no property, he could not be fined for crimes, but was whipped, mutilated, or killed.

During famine, acorns, beans, peas, and even bark were ground down to supplement flour when grain stocks grew low. People scoured the hedgerows for herbs, roots, nettles, and wild grasses, which were usually left for the pigs. Sometimes people were driven to infanticide or group suicide by jumping together off a cliff or into the water.

Several large kingdoms came to replace the many small ones. The people were worshipping pagan gods when St. Augustine came to England in 596 A.D. to Christianize them. King AEthelbert of Kent [much later a county] and his wife, who had been raised Christian on the continent, met him when he arrived. The King gave him land where there were ruins of an old city. Augustine used stones from the ruins to build a church which was later called Canterbury. He also built the first St. Paul's church in London. Aethelbert and his men who fought with him and ate and lived in his household [gesiths] became Christian. A succession of princesses went out from Kent to marry other Saxon kings and convert them to Christianity.

Augustine knew how to write, but King AEthelbert did not. The King announced his laws at meetings of his people and his eorls would decide the punishments. There was a fine of 120s. for disregarding a command of the King. He and Augustine decided to write down some of these laws, which now included the King's new law concerning the church.

These laws concern personal injury, killing, theft, burglary, marriage, adultery, and inheritance. The blood feud's private revenge for killing had been replaced by payment of compensation to the dead man's kindred. One paid a man's "wergeld" [worth] to his kindred for causing his wrongful death. The wergeld [wer] of a king was an unpayable amount of about 7000s., of an aetheling

- The Law -